Tuesday, November 6
I sat at my desk reading over the transcript of Kate and Joe Ames’ encounter when George Cooper returned my frantic message.
“I got your voice mail, and I’ll make sure the deputies keep your client separated from Ames,” he said.
“With all due respect, George, I’d like to talk with someone myself. Kate told the cops he’s responsible for Yvonne Pritchard’s death. She also set him up to get busted. I can’t have them anywhere near one another. Can you ring the marshal in on a three-way?”
“I’ll try. Hold on.”
Within a minute, Cooper connected the conference call, and we got it resolved. Kate would be kept in a holding cell on a different floor from the lock-up. The marshal agreed to have a deputy with her at all times. Thank you, God.
**
In addition to the offensive jumpsuit, Kate wore a grim expression when I visited her at the jail that morning. “What the fuck happened?” she asked. “I cooperate, tell them everything I know, set up the guy I love, and get arrested in return? No wonder the government’s losing the war on drugs.”
“This is your second bail revocation hearing, and it’s the U.S. Attorney’s policy to issue arrest warrants after more than one violation. George Cooper wasn’t around to authorize a waiver.”
“I would’ve shown up for the hearing.”
“I know.”
“So how does it look?” Kate asked, her voice barely audible through the visitor’s telephone.
“I haven’t a clue,” I said. “Cooper’s promised to argue vigorously against revocation. But, as you already know, Stan Brillstein has a mind of his own. This may be a battle rather than a skirmish.”
The wretched look in Kate’s eyes told me she hadn’t wanted to hear the truth any more than I’d wanted to say it.
“Let’s talk about your testimony,” I said.
“Testimony?” she asked, her voice quivering. What a different Kate Daniels than the one I had known a year or two ago. Gone was the poise and self-confidence that, cocaine-induced or otherwise, she had always exuded.
“I don’t think I can do it,” she said.
“Yes, you can. I’m not going to put you on the stand unless I have to. But it may be necessary for you to describe how much you feared for your safety when Ames became suspicious of you.”
She inclined her head backward and closed her eyes. “You’re so naive, Caroline. I wasn’t afraid for my safety. I was fearful of losing my freedom for a dirty UA, and I could honestly protest a bit on some level. I knew if I didn’t sample it Joe wouldn’t sell to me and the bust wouldn’t go down. And I wanted to use the cocaine. I wanted to escape to Costa Rica, or even to the McDonald’s restroom, with the whole two ounces. There’s only one thing that brought me to my senses and made me say the arrest signal. While I was looking at the coke, Joe started feeling me up.”
I felt like the wind had been knocked out of me. How many times do I need to be reminded about her powerlessness over cocaine before I finally get it? “Okay, Kate, I won’t put you on the stand. Let me go get ahold of Adam and see if he’ll testify on your behalf.”
Now she looked down at her lap.
“Another thing,” I said, “Joe Ames has a detention hearing at three today, so you’ll be at the federal courthouse at the same time. They’re making arrangements to transport and hold you separately. But if you see him, don’t say anything.”
No response.
“Kate, it’s important. Not a word to him, okay?”
“Okay.”
When Kate left the visiting booth, I sat for a moment, rolling my neck and doodling on my legal pad. What in God’s name do I do? I had planned to argue in court that Kate had used cocaine out of fear, but it wasn’t true. I had never intentionally lied to a judge before, and I didn’t want to start now. But I had to try not to incriminate my client.
**
At four o’clock, George Cooper was still absent from the courtroom. I’d hoped to catch him in the hallway to hear what had happened at Joe Ames’ detention hearing, but he was nowhere to be found.
“My schedule is tight,” Judge Brillstein said as he took the bench, looking up to see Cooper rushing in. “I’m glad everyone was able to make it. When I released Ms. Daniels to the treatment program less than a month ago, I made it clear I would not tolerate illegal drug use, and I’m not about to delay dealing with it. Ms. Smith-Kellor has submitted a report indicating the defendant in fact used cocaine three days ago. Ms. Spencer, does your client dispute that?”
“No, Your Honor.”
“I’ll tell you flat out I’m inclined to revoke her bail. Unfortunately, I’m required to hear argument,” he said sardonically. “Mr. Cooper, your position?”
“Your Honor,” Cooper said hurriedly, as if to get it over with, “the government recommends Ms. Daniels be continued on pretrial release. There are some circumstances of which the Court is not aware: Ms. Daniels was cooperating with law enforcement authorities when the cocaine usage occurred.”
The judge glared at him. “What?”
Carter Ellingson and George Cooper sat together at the prosecution table wearing hangdog expressions that would have been funny if not for the circumstances.
“Judge,” Cooper said, “last week I approached Ms. Spencer and asked whether her client would be willing to cooperate in the investigation of a suspected cocaine dealer with whom we had reason to believe she was acquainted. She consented. I arranged for Ms. Daniels to be interviewed by Special Agent Ellingson here, along with DCI Agent Richard Shelton, Lieutenant Tom Robbins from the county sheriff’s department, and a couple of detectives from the Madison PD. I regret I did not make the time to attend myself.”
At the mention of Shelton’s name, Judge Brillstein shook his head several times. But he held his tongue while Cooper continued.
“During the course of the interview, it was suggested that Ms. Daniels contact the suspect on a monitored telephone to arrange for the purchase of—”
“Mr. Cooper,” the judge said, “you and all of your agents are well aware of this court’s prohibition against using defendants as active informants. Just how did such a suggestion come to be posed to Ms. Daniels?”
I cringed inside. Kate’s telephone call from T.G.I. Friday’s to Joe Ames was a clear violation of her bail conditions. If George Cooper mentioned it, it would be obvious to the judge that Kate had been trying to buy cocaine while on pass from The Meadows.
“Your Honor, as I said, I was not present at the interview nor have I seen written reports from those who were. But Agent Ellingson informs me Agent Shelton inquired whether the suspect would still be willing to sell the defendant cocaine. When Ms. Daniels said she thought he would, Agent Shelton suggested they set him up. Unfortunately, neither Agent Ellingson nor Ms. Spencer was aware of the Court’s order against defendants’ participating in such investigations.”
“How is this possible?” Brillstein barked.
“With all due respect, Your Honor,” Cooper continued, “the order is somewhat unique to this district—although courts in some other districts are adopting similar policies. In any event, Agent Ellingson is relatively new to this area and was not informed of the prohibition when he came here. You may not be aware of it, but he does not generally work drug crimes, where informants are typically used. And, as for Ms. Spencer, she—”
“…doesn’t practice in federal court,” Brillstein said. “So she can’t be expected to know the rules. It’s the old ‘I didn’t know’ defense. Well, you all should have known. And there’s no question Agent Shelton knew. I’ve had him in my courtroom before and made it abundantly clear. I don’t see him here today. I’ve half a mind to hold him in contempt for his blatant disregard of our policy. Nevertheless, I’ve no desire to prolong the discomfiture of this defendant and her counsel, so let’s get on with this. Suffice it to say, Mr. Cooper, I hold you personally responsible for losing control of this investigation.
“Ms. Spencer,” the judge went on, “why don’t you tell me what happened from there?”
“Yes, Your Honor. Before I begin, I’d like to point out the government promised my client immunity in return for her information and cooperation. I submit anything relative to that cooperation cannot be used against her.”
I looked to George Cooper, who nodded and said, “Ms. Spencer’s representation is accurate, Your Honor.”
“Very well,” Brillstein said. “But keep in mind an immunity promise does not give one grounds to use controlled substances. Please proceed.”
“On the same afternoon as the interview,” I continued, “this past Thursday, my client agreed to make a telephone call to the suspect. The call was monitored and recorded by the agents. She ordered a quantity of cocaine to be picked up on Saturday afternoon, while she was on a five-hour pass from The Meadows. The suspect agreed.
“On Saturday,” I said, “we went to the FBI office where an agent fitted my client with a body wire. They searched her car and her person. They found absolutely no contraband. My client met the suspect as arranged, while under the surveillance of the officers. Your Honor, I have a transcript of the conversation, marked ‘Defense Exhibit One,’ which I’d like to present to the Court.”
“No objection,” George Cooper said as I handed him and the judge their copies.
“As you can see, the suspect, Ames, was suspicious of my client—”
“Hold on a minute,” Brillstein said. “Are you referring to Joseph Ames, the defendant in the case I just heard?”
Oh, shit! I thought. I shouldn’t have mentioned his name. But there were no spectators in the courtroom, so I took a deep breath and quit berating myself. “Yes, Your Honor,” I said.
“All right. That raises more questions, but you may proceed.”
“Ames was suspicious,” I repeated. “Although my client made excuses not to use cocaine, Ames continued to insist she do so. I submit her refusal to use the drug would have jeopardized the investigation and perhaps her personal safety.”
I hurried on so the judge didn’t have time to comment.
“My client admitted the use of cocaine immediately when she returned to The Meadows a few hours later. I stood right next to her at the time and can attest to it. She didn’t wait for the results of the mandatory urine test. Further, her primary counselor, Adam Larken, is here in court today. He’s prepared to testify, if Your Honor wishes to hear directly from him.”
“Yes, Ms. Spencer, let’s hear from him,” Brillstein said. “As I recall, he provided some impressive testimony last time he was here.”
I had hoped the judge would simply let me proffer, or summarize, what Adam would say if called to testify. We hadn’t had time to rehearse any questions, and I took very seriously the old adage that a lawyer should never ask a witness any question without knowing the answer. I hated being unprepared. My stomach churned as I approached the stand and said a silent prayer that Adam’s responses would help rather than hurt us.
“Mr. Larken,” I said after the standard questions about his identity, “please tell me your initial reaction when you learned about Saturday’s events.”
“I was furious. Not at Kate, but at you and the cops for allowing her to be in a situation where she would be expected to touch and possibly use cocaine. I considered it very irresponsible of you.”
“In hindsight, I agree with you, Mr. Larken. And I know Mr. Cooper does as well. How did Ms. Daniels act when she told you she’d used cocaine?”
“Defeated. She thought it was a major setback. In my opinion, she was genuinely remorseful and very ashamed. I would prefer not to get into our discussions of her thoughts and feelings. But I will give you another opinion: Kathryn Daniels learned something important as a result of this encounter with cocaine. I believe she’ll be stronger in recovery as a result. Without prompting from me, Kate volunteered to remain in the program two weeks longer than planned, to solidify her progress. There is space available for her to stay, and it’s a move I recommend to virtually any patient who can afford it.”
Recalling Kate had used cocaine hours before her admission to The Meadows—which the judge didn’t know—I had to carefully word my next question.
“Mr. Larken, have any of my client’s other urine samples tested positive for drug usage during her stay at your facility?”
“No.”
“Do you believe she’s making a sincere effort to recover from her addiction?”
“Yes, I do.”
“Thank you,” I said to Adam. “Your Honor, I have no further questions.”
“Mr. Cooper,” Judge Brillstein said, indicating it was the prosecutor’s turn to examine the witness.
“No questions, Your Honor.”
“Very well,” Brillstein said, “I have a few questions of my own. Mr. Larken, what are the chances Ms. Daniels will be able to remain drug free?”
“I’m sorry, sir. I can’t answer that.”
“Can’t or won’t?”
“Can’t, sir. I have no way of predicting. There are far too many variables. Statistical studies aren’t very useful in forecasting behavior for the individual. I do know Ms. Daniels is motivated, bright, has excellent social skills and has positive ties in the community. In my experience, all of those things enhance someone’s chances for long-term recovery from addiction. And her willingness to commit to an extended stay at our facility is a good sign.”
“Thank you.”
George Cooper, having recovered his usual eloquence, argued Kate’s cocaine use was situational in nature and unintentional. He urged the Court not to hold my client responsible for his own negligence. He praised Kate’s willingness to cooperate with authorities and suggested it was a true sign of her desire to turn her life around. How different, I thought, than when he’d argued for her detention several weeks ago.
When Cooper finished, I stood up to begin my argument.
“Ms. Spencer,” Brillstein said, “I don’t need to hear any more. Ms. Daniels, your pretrial release conditions are continued. Please don’t make me regret it. I’ll be issuing an order as to Mr. Shelton.”
Without further comment, he stood and left the courtroom.
Kate turned and hugged me tightly. It was the most spontaneous demonstration of affection I’d ever seen from her. That alone gave me hope for her future.
Kate had to go back to the county jail with the marshals to be booked out. They approached her just as I turned to George Cooper to ask the outcome of Joe Ames’ detention hearing.
“Judge Brillstein ordered his release on a property bond,” he said, looking down at his shoes. “I expect the sonuvabitch’ll be back on the streets tomorrow morning.”
Kate couldn’t help but hear, and her look of alarm heightened my own aggravation. I threw my pen on the table. “How in the hell can this be happening?”